Opinion
360680
04-25-2023
People of Michigan v. Matthew John Vagasky Sr
LC No. 2019-000634-FC
Kathleen Jansen Presiding Judge Mark J. Cavanagh Elizabeth L. Gleicher Judges
ORDER
The motion for immediate consideration is GRANTED.
The motion for peremptory reversal pursuant to MCR 7.211(C)(4) is GRANTED on the authority of Arizona v Youngblood, 488 U.S. 51; 109 S.Ct. 333; 102 L.Ed.2d 281 (1988); People v Dickinson, 321 Mich.App. 1; 321 N.W.2d 1 (2017); and People v Albert, 89 Mich.App. 350; 280 N.W.2d 523 (1979) based upon the bad-faith intentional destruction of potentially useful evidence by law enforcement.
The convictions are VACATED and the case is REMANDED to the circuit court for a new trial or dismissal of the charges.
We do not retain jurisdiction.
Gleicher, P.J., concurs, and states as follows:
I concur with my colleagues' decision to peremptorily reverse the trial court's denial of defendant Matthew John Vagasky, Sr.'s motion for a new trial. I write separately to explain my reasons for joining in this order.
Peremptory orders should be extremely rare. Summary rulings on the merits of an appellate issue "where no emergency exists, violate[] norms that promote judicial restraint." Maveal, Michigan Peremptory Orders: A Supreme Oddity, 58 Wayne L Rev 417, 464 (2012). An appellate opinion signed by a panel of judges enhances the legitimacy of a result by "speak[ing] to the public on the rightness (and perhaps wisdom) of the ruling and assuag[ing] parties that they have received a 'fair break.'" Id. at 464465. Panel deliberations after full briefing and argument also promote soundly reasoned, careful judgments. On the other hand, peremptory orders entered with no explanation or containing merely a cursory paragraph or two, are often the product of rapid-fire judgments uninformed by a disciplined review of the record or serious contemplation of their consequences. See, e.g., the saga recounted in Nayyar v Oakwood Healthcare, Inc, unpublished per curiam opinion of the Court of Appeals, issued March 23, 2023 (Docket No 360257). Nayyer showcases the danger of entering a poorly considered peremptory order.
This case falls into the exceptional realm of a matter appropriately warranting peremptory relief. The prosecution has conceded that an error occurred, and that the error warrants a new trial. The prosecution has not endeavored to support the trial court's legal analysis. To the contrary, the prosecution has declared: "[T]here is no legitimate argument the People can make in this matter." A court need not accept at face value the parties' arguments. But the legal issues presented here are straightforward. That said, because I believe that it is important that the parties and the trial court understand at least one judge's reasons for this peremptory reversal, I write separately to explain mine.
A jury convicted Vagasky of four counts of first-degree criminal sexual conduct, MCL 750.520b(1)(a), arising from his alleged abuse of his stepson. The conduct occurred between 1990 and 1995, and was first reported to the Warren Police Department in 2018. Detective Donald Seidl interviewed the complainant when the man appeared at the police station to report the abuse that had taken place more than 20 years earlier. At Vagasky's 2021 trial, Seidl recollected that the interview with the complainant consumed between one to three hours. Seidl took notes, although he admitted that he was "not the greatest of note takers; I talk faster than I can write." He destroyed the notes. He used a "digital recorder to help with the notes," volunteering that he did so "with the knowledge that after the report is written, not only will the notes, but also the audio recording will be destroyed. And that's what I did with this one." Seidl admitted that he "always" destroyed his notes and the recording because he was "trained that we are not to have audio recordings, because if you do, the defendant can ultimately get that audio or visual recording, and they can re-live the incident again through that, or they can disseminate it to other people." Seidl claimed, "And that came from the Macomb County Prosecutor's Office." He insisted that he was "not allowed to audio tape . . . for evidentiary purposes," because if he did so, "the audio and visual would then be placed on evidence so that it would go to the prosecutor and to the defense attorney."
Long-standing, firmly entrenched precedent instructs that the state has a constitutional obligation to preserve and to produce exculpatory evidentiary material. Brady v Maryland, 373 U.S. 83, 87; 83 S.Ct. 1194; 10 L.Ed.2d 215 (1963) ("[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."). The negligent destruction of potentially evidentiary material tees up a different inquiry, and does not necessarily constitute a denial of due process of law. But when a police officer intentionally destroys information "useful" to the defense to gain a tactical advantage, the officer's conduct vaults to the forefront on the analysis. If a "failure to preserve potentially useful evidence" is traceable to "bad faith on the part of the police," a defendant is denied due process of law. Arizona v Youngblood, 488 U.S. 51, 58; 109 S.Ct. 333; 102 L.Ed.2d 281 (1988).
What does "bad faith" mean in the context of deliberately destroyed evidence? The caselaw on this subject is sparse, and its guidance unsatisfactory. As one academic author who has studied the question put it:
Incoherence characterizes post-Youngblood case law decided in state and lower federal courts. There are significant disparities in the ways in which courts have interpreted fundamental aspects of Youngblood, including the meaning of "bad faith," whether the lost evidence must be potentially exculpatory or possess apparent exculpatory value to establish a due process violation, and what remedy is available in the event of a violation. [Bay, Old Blood, Bad Blood, and Youngblood: Due Process, Lost Evidence, and the Limits of Bad Faith, 86 Wash U L Rev 241, 247 (2008).]Professor Bay points out that very few opinions have concluded that the "bad faith" standard was met. A different author observed in 2007 that according to her research, "there are 1,675 published cases that have cited Youngblood to date but only seven reported cases where bad faith has been found." Chen, The Youngblood Success Stories: Overcoming the "Bad Faith" Destruction of Evidence Standard, 109 W Va L Rev 421, 422 (2007). This case, however, involves an officer's admitted intent to suppress relevant evidence of the complainant's credibility to disadvantage the defense. See Giglio v United States, 405 U.S. 150, 153-154; 92 S.Ct. 763; 31 L.Ed.2d 104 (1972) ("[S]uppression of material evidence justifies a new trial irrespective of the good faith or bad faith of the prosecution. When the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within this general rule.") (quotation marks and citations omitted).
Vagasky was tried twice. His first trial ended with a hung jury. He was convicted in the second and is serving a minimum sentence of 10 years' imprisonment. No evidence other than the complainant's supported his conviction.
The State Appellate Defender's Office was appointed to represent Vagasky on appeal and moved for a new trial in the trial court. SADO's first argument was a due process challenge to the destroyed notes and audiotape. The trial court denied the new trial motion, rejecting that a due process violation of any kind had occurred. The trial court's opinion contains a central legal error, however, which likely explains the prosecution's inability to defend it. The trial court ruled that Seidl's decision to destroy the audiotape and the notes did not "amount to bad faith" because "[t]here has been no showing that Detective Seidl destroyed the recording in question in an effort to suppress exculpatory evidence or that he believed or knew that the recording had exculpatory value." Therefore, the court concluded, Vagasky failed to establish a constitutional violation.
The trial court apparently misread or misunderstood Youngblood. There, the Supreme Court explained that the police do not bear "an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution." Youngblood, 488 U.S. at 58. But a police officer's "bad faith" becomes relevant in "those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant." Id. (emphasis added). Youngblood holds "that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Id. (emphasis added). The United States Court of Appeals for the Tenth Circuit has restated this holding as: "if the exculpatory value of the evidence is indeterminate and all that can be confirmed is that the evidence was 'potentially useful' for the defense, then a defendant must show that the government acted in bad faith in destroying the evidence." United States v Bohl, 25 F.3d 904, 910 (CA 10, 1994). This standard is not simple or straightforward. But there should be no doubt about Youngblood's cardinal instruction: when the police destroy potentially useful evidence in "bad faith," the defendant is constitutionally prejudiced regardless of whether the defendant can show that the evidence was exculpatory.
Here, Seidl's testimony establishes as a fact that he destroyed the notes and the audiotape so that the defense would not have access to them. The only logical conclusion to be drawn from this deliberate act is that Seidl knew that the notes and the audiotape would be potentially valuable to the defense as impeachment fodder. And Seidl said as much during his trial testimony.
Several state courts have defined "bad faith" in the context of destroyed evidence, and those definitions are helpful here. The North Dakota Supreme Court explained that:
Bad faith, as used in cases involving destroyed evidence or statements, means that the state deliberately destroyed the evidence with the intent to deprive the defense of information; that is, that the evidence was destroyed by, or at the direction of, a state agent who intended to thwart the defense. [State v Steffes, 500 N.W.2d 608, 613 (ND, 1993).]
Connecticut applies the same standard:
Bad faith, as used by this court in the numerous cases involving destroyed statements, means that the state deliberately destroyed the evidence with the intent to deprive the defense of information; that is, that the evidence was destroyed by, or at the direction of, a state agent who intended to thwart the defense. [State v Baldwin, 224 Conn 347, 364; 618 A.2d 513 (1993).]See also State v Bousum, 663 N.W.2d 257, 263 (SD, 2003). Although no Michigan cases define the phrase as forthrightly, there should be no serious debate about its meaning.
Against this legal and factual backdrop, the prosecution's response to Vagasky's motion for a new trial sensibly states, in whole, as follows:
The Defendant has filed a motion for peremptory reversal. The People have agreed with defense counsel that there is no issue of fact in this matter. The record indicates that the detective in charge of this case recorded his interview with the victim and then destroyed that recording so that it would not be turned over as evidence. The People conceded this fact in the trial court and indicated that the People have no legitimate argument given the law found in defense's briefings. Moreover, the People provided the trial court with the case of People v Albert, 89 Mich.App. 350 (1979). The People acknowledged that the trial court did not have to accept concessions of law from the parties and the issue before the trial court was to decide the proper remedy. The People acknowledged that Albert would indicate that suppression of the victim's testimony would be the remedy. As such, if the trial court found that to be the remedy, dismissal of the case would be required. Instead, the trial court found no error whatsoever.
The People once again agree that there is error and that there is no legitimate argument the People can make in this matter. However, the People are not filing a confession of error for two reasons. First, this Honorable Court is not required to accept confessions or stipulations as to the law. Second, given that Albert is from 1979, this Court needs to make some sort of statement regarding this type of error by the police. A confession of error won't be enough. Whether it's done by peremptory reversal or by opinion and order, some type of explanation by this Honorable Court would speak volumes for this case as well as future cases. In any event, the People will not be arguing against the defense's position in this matter.
I commend the prosecution for making this statement. In my view, it represents an application of the highest standards of ethical conduct and a recognition that the prosecutorial function is to do justice.
The prosecution also correctly points out that People v Albert, 89 Mich.App. 350; 280 N.W.2d 523 (1979), is the most similar reported case in our state's jurisprudence. There, a police officer discarded a witness's audio-taped statement because the witness did not inculpate the defendant, as the officer anticipated he would. Id. at 351-353. This Court characterized the issue presented as "whether the action of [the officer] in 'discarding' the tape-recorded confession was performed in bad faith or for the purpose of destroying evidence for a forthcoming trial." Id. at 353.
Albert was decided almost a decade before Youngblood, but this Court's analysis presciently foreshadowed the Supreme Court's. We declared in Albert that based on the officer's admission that he destroyed the tape to prevent the defense from hearing it, "we can only conclude that the intentional destruction of the evidence occurred with knowledge of its importance to the defendant herein. Bad faith has therefore been shown. Such conduct on the part of investigating officers cannot be tolerated and reversal of defendant's conviction is mandated." Id. at 354. In that case, as here, "[t]he significance of this destroyed evidence" was that the defendant was "deprived of a powerful tool in cross-examining and impeaching the key prosecution witness." Id. Albert continued: "In our judicial system the right of cross-examination is more than a desirable rule of trial procedure. 'It is implicit in the constitutional right of confrontation, and helps assure the "accuracy of the truth-determining process".'" Id., quoting Chambers v Mississippi, 410 U S 284, 295; 93 S.Ct. 1038; 35 L.Ed.2d 297 (1973). This Court ordered the suppression of the witness's testimony on retrial.
Here, the prosecution correctly points out that Albert is not binding on this Court under MCR 7.215(J)(1). But Albert was binding on the trial court, and its holding should have easily guided the trial court to the result reached today. Furthermore, Alberts' holding and analysis segue neatly with Youngblood, and there is no reason to believe that a panel of this Court would resolve this case differently today than we did in 1979.
For these reasons, I join the majority in peremptorily reversing the trial court's denial of Vagasky's motion for a new trial. Youngblood forbids the bad faith destruction of potentially useful evidence. There is no dispute that Seidl destroyed the tape and the notes because he knew they would be useful to the defense. Nothing more need be shown, and given this record and the prosecution's concessions, plenary review is unnecessary.